Law categorizing DUI offenses as ‘serious criminality’ set to take effect

What does the change mean? The change has potentially serious immigration consequences for foreign nationals planning to visit or work in Canada, temporary residents applying to extend their stays, applicants for permanent residence, permanent residents and sponsored relatives of Canadian citizens or permanent residents. Depending on their immigration status, foreign nationals may be deemed inadmissible or subject to deportation for a DUI conviction after Dec. 18, whether in Canada or abroad.

Who is affected: Employers and foreign nationals who are convicted of a DUI offense after Dec. 18. Officials are not expected to apply the law retrospectively.

Business impact: Businesses could be negatively impacted if foreign employees are convicted of a DUI offense after Dec. 18.

Additional information: Bill C-46 was passed earlier this year as companion legislation to Bill C-45, The Cannabis Act, which legalized the possession of marijuana for personal use in Canada. Bill C-46 increased the maximum punishment for a DUI offense to 10 years of prison, which puts these offenses in the category of “serious criminality” and triggers inadmissibility and deportation consequences under Canada’s Immigration and Refugee Protection Act. The change will affect the following people:

Foreign nationals seeking temporary entry into Canada. Foreign nationals with a DUI conviction after Dec. 18 who are seeking temporary entry into Canada will be deemed inadmissible.

Temporary residents of Canada. Temporary residents (e.g., work permit holders or students) with a DUI conviction after Dec. 18 who are seeking to extend their stay will be deemed inadmissible.

Applicants for permanent residence. Applicants for permanent residence with a DUI conviction after Dec. 18 will be deemed inadmissible.

Permanent residents of Canada. Permanent residents with a DUI conviction after Dec. 18 could face deportation.

Sponsored relatives of Canadian citizens or permanent residents. Sponsored relatives whose cases are in process may lose appeal rights if found to be inadmissible for a DUI conviction after Dec. 18.

The Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, has confirmed that immigration officers will not apply the law retrospectively. He has also indicated that he is committed to working with stakeholders to take appropriate action to mitigate the immigration consequence of both Bill C-45 and Bill C-46.

Analysis & Comments: Bill C-46 has potentially serious immigration consequences. The reclassification of DUI offenses as “serious criminality” means that foreign nationals with a DUI on their record will no longer be “deemed rehabilitated” after 10 years from the time their sentence requirements are complete. Instead, they will have to pursue the process of formal rehabilitation or record suspension (for offenses inside Canada), both of which require significant time and documentation. Employers with an employee who is charged with a DUI are encouraged to consult with their immigration counsel immediately.

This alert was prepared by Garson LLP, an independent law firm, allied with Deloitte LLP in Canada.